HKSAR v. XIE ZHIJIE

DCCC31/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 31 OF 2012

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Reasons for Sentence

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1.  The defendant pleaded guilty to Charge 1 for trafficking in a dangerous drug and Charge 2 for possession of apparatus fit and intended for the inhalation of a dangerous drug.

2.  I called for a DATC report, indicating clearly that this court did not intend to sentence the defendant to DATC.  The report was called for to know more background about the defendant’s addiction.  The DATC report is now available. 

3.  In summary, on 19 December 2011, the defendant, who was arriving at Tsim Sha Tsui China Ferry Terminal from Mainland China, was refused landing in Hong Kong by the Immigration Department.  She was taken by an Immigration officer to the Customs Arrival Hall for customs clearance.

4.  Upon a search, a Customs Officer found in the defendant’s fist the “Ice” particularised in Charge 1.  The defendant admitted that she gave RMB$1,000 to her friend to buy for her the drugs in Zhuhai, China, and it was for her own consumption. 

5.  Upon further search, five plastic straws, one piece of tinfoil and one plastic cap (the apparatus) were found inside the defendant’s handbag.  The defendant admitted that the apparatus was to be used by her to inhale the “Ice”. 

6.  The Government Chemist confirmed that the dangerous drug found on the defendant contained 5.60 grammes of a crystalline solid containing 5.55 grammes of methamphetamine hydrochloride.  The street value of the drug in question was $4,284. 

The defendant’s background and mitigation

7.  The defendant is now 29 years old.  She is married with a 5-year-old son.  She is a resident in the Mainland.  She has been living with her husband and son in Zhongshan, China.  She and her family run a lighting company in the Mainland.  The defendant has a clear record in Hong Kong. 

8.  Although the medical officer in the Tai Lam Centre for Women is of the opinion that the defendant is a drug dependant, the intake officer does not consider that the defendant is suitable for admission to DATC because it is impractical to administer the statutory supervision on the defendant not being a Hong Kong resident.  In any case, for this serious offence, I will not sentence the defendant to DATC. 

9.  In mitigation, Mr Laskey, counsel for defendant tells me that the drug in question is wholly for the defendant’s own consumption. It is not disputed by the prosecution.  I will therefore sentence the defendant on this basis. 

10.  Mr Laskey, referring me to Secretary for Justice v Chan Chun Fai CAAR11/2010 and two District Court cases, DCCC786/2010 and DCCC646/2011, submits that a further discount after the reduction for plea of guilty can be given to the defendant for her own consumption as a mitigating factor.  I have also considered the case of HKSAR v Chow Kam Lung, CACC68/2010.

11.  Mr Laskey suggests that a further discount for at least 25 per cent as was given in the case of Chan Chun Fai or even a higher percentage as much as 40 per cent discount as in DCCC786/2010 can be given to the defendant.  He also asks the court to take into account that the defendant’s son will lose the care of his mother. 

Reason for sentence

12.  I accept that the drug in question is wholly for the defendant’s own consumption.  It is a strong mitigating factor.  That said, importing drug is a serious form of trafficking which must be deterred.  According to AG v Ching Kwok Hung [1991] 2 HKLR 125 and HKSAR v Capitania Edwin F, CACC28/2004, for trafficking in “Ice” up to 10 grammes the appropriate sentence range is 3 to 7 years’ imprisonment.   

13.  The quantity of “Ice” in this case is 5.55 grammes.  I will take 4½ years as the starting point.  I will give the defendant full credit for her plea of guilty and reduce the sentence by one-third to 3 years’ imprisonment.  I will further give the defendant one year’s reduction to reflect the strong mitigating factor that the drug was wholly for her own consumption. 

14.  I accept that the defendant is now genuinely remorseful. She is now distressed because she will have to stay apart from her family in China.  Her 5-year-old son will be deprived of the care of his mother for a considerable time.  No doubt these are matters that she should have considered before she decided to cross the border with the drugs.  It therefore counts very little in terms of mitigation. 

15.  However, to show mercy of the court, I will give a further reduction of 2 months. 

16.  On Charge 1, the defendant is sentenced to 22 months’ imprisonment.  On Charge 2, I take 4½ months as a starting point and reduce it to 3 months for her plea of guilty.  The sentence shall run concurrently with the sentence in Charge 1.

17.  The total term of imprisonment is therefore 22 months.